The Brainwashing Of The Judicial Branch

The conservative effort to control the judiciary has been a decades-long effort. The two biggest groups in making that effort possible are the Federalist Society and the Heritage Society.  Those two organizations were actually the ones who compiled the list of Supreme Court nominee from which Trump would choose. In fact, every confirmed Supreme Court justice nominated by the last three Republican presidents has either been a member of or approved by the Federalist Society. These two organizations have literally been grooming, in the best and worst sense of that word, conservative young lawyers for decades.

That grooming begins in the law schools across this country. Part of that effort is, or now, was, the Federal Clerkship Training Academy run by the Heritage Foundation. A select group of applicants would have the opportunity to attend an all expense paid three day seminar focused on "originalism, textualism, habeas corpus, the Bill of Rights and other substantive legal and practical subject matter". The application process indicated the conservative slant of the attendees that would be chosen by including questions such as how they would describe their concept of originalism.

There is certainly nothing wrong with running a program for conservative lawyers aspiring to become law clerks. But other aspects of the program raise serious questions. First, the donors were anonymous and the program made clear that, whoever they were, they were making "a significant financial investment in each and every attendee". In addition, applicants were told that the program's teaching materials must remain private and were required to pledge that whatever they learned at the seminar could not be used "for any purpose contrary to the mission or interest of the Heritage Foundation." So much for the concept of judicial independence. As one law professor noted, the conditions and secrecy around this seminar "reads like a kind of indoctrination".

In addition, Heritage refused to divulge the names of the law professors and sitting federal appeals court justices that it touted would be addressing this seminar. It is hard to believe that any current justice would sign on to a program with these kind of restrictions, even anonymously, but such is the level of ethics in the conservative judiciary these days.

Unfortunately, these kind of programs really work in slanting the judiciary. A new study shows that judges with conservative law clerks end up making conservative decisions 4% more of the time than when they had liberal clerks. Another study of the impact of the Manne seminars run out of the libertarian-leaning George Mason Law School during the 1980s and 1990s showed an even more profound effect. The seminars were paid for by the top corporations of the time and focused on economics in a way that had "favorable implications for private property and free markets". Over time, nearly half of all federal judges took these two week seminars. The study found they had a profound effect on the way those judges decided cases.

According to the study, "We find that, post Manne attendance, judges render conservative verdicts in economics-relevant cases. Further, using the 100% sample of machine-coded circuit cases, we find that Manne attendees subsequently are more likely to rule against regulatory agencies, for example the EPA and NLRB….. We show that the difference in sentencing harshness between Manne and non-Manne judges is highest after the 2005 Booker decision gave more discretion to judges in sentencing...Economics likely changed how judges perceived the consequences of their decisions. If you teach judges that markets work, they deregulate government. If you teach judges that deterrence works, they become harsher to criminal defendants." Of course, that is exactly the outcome that those big corporate donors were paying for.

The Federalist Society was started in 1982 by Ed Meese, Robert Bork, and others with the express purpose of imposing their conservative and libertarian ideology on the country's judicial system. It has been a near 40 year effort that has culminated with the confirmations of Gorsuch and Kavanaugh, control of the Supreme Court because of the refusal to seat Merrick Garland, and the packing of the lower courts by Trump because of the obstruction of Mitch McConnell. It was a long road, but the neutering of the America's independent judiciary is nearly complete.